Almost everyone who has ever watched television or gone to the movies thinks they know the rights the police would read them if they ever found themselves in the unfortunate situation of being stopped by the police and questioned.
Even many children can recite the words from memory: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense.”
Nevertheless, there is a lot of confusion as to how those rights, known as Miranda warnings, are applied.
Frequently, people who have been arrested will ask their attorney if their case can be dropped because the police did not inform them of their rights. However, in many cases, it turns out that the police arrested them, but never questioned them. So, if you are not questioned, the police do not need to read you your rights, even though it might be good practice if the police did so every time just to be sure.
Also, the police do not need to read you your rights unless they question you while you are in custody. If the police merely question you out in the street while not in custody even if they suspect you, they do not have to tell you your Miranda warnings.
Now, in that situation, this is where it can get tricky and a lawyer might be of great help to you in getting your statements thrown out in court if you wound up saying anything that might have incriminated you. This is because there are situations where one is not technically placed under arrest or put in handcuffs and yet good legal counsel can argue that you were, in effect, in custody, because circumstances may have implied that you were not free to leave. You were somehow led to believe that you couldn’t just cut the conversation off with the police officer off and simply walk away.
Whether to Speak to the Police Even If Read Your Rights
It is generally advised for someone suspected of criminal activity not to speak to the police at all ever. Even if a person is truly innocent of any crime, they might say something in a way that it can be misinterpreted and used against them. Or they may just be nervous and say something by mistake that mistakenly makes them appear guilty of something. Also, some people think they are savvy and smart enough to speak to the police and yet don’t understand that they may inadvertently be admitting to criminal activity.
For example, there have been times that someone suspected of an illegal drug crime has said to the police that they have never sold drugs, just given some drugs to a friend for free if they had extra. They didn’t realize that the crime is not whether one made money or not from drugs; the crime is just that one distributed drugs whether paid or not. So, that person, thinking they were outsmarting a police officer by explaining that they were not selling drugs actually wound up giving a complete confession to the crime of distribution of drugs.
In another common example, someone stopped and suspected of drunk driving may tell the police officer that they are not drunk and only had two drinks. They don’t realize that this was helpful to the police and prosecutor at a later trial because they have already confessed to drinking while driving, now it is just a question of whether they were also impaired by that drinking. Even though they may truly have had something to drink earlier in the evening, but are truly not under the influence, they, nevertheless, are worse off than someone who simply kept their mouth shut and never conceded drinking any alcohol whatsoever.
When you invoke your constitutional right to remain silent, you can’t be vague, unclear or ambiguous. If you say something like, “Gee, I’m not so sure I should talk to you guys” or “I think maybe I might need a lawyer,” that may not be specific enough. Better to clearly state something like you definitely want to exercise your right to remain silent and you, without any doubt, want to speak to an attorney first.
At that moment, all questioning must stop. Otherwise, if police do not stop questioning you immediately, they will have violated your Miranda rights. Police can ask you routine questions such as your name, address, date of birth, or social security number without violating your rights, but you cannot be forced to answer even that.
There are times when, after someone invokes their right to remain silent, the police will try to get them to reconsider. They will say such things as “Well, I guess this means you must be guilty. If you haven’t done anything wrong and are innocent, you would probably be talking to us.” Or they might say, ” Oh come on, why spend money on a lawyer? You don’t need one. We just want to ask a few routine questions and then you can probably be on your way” Or they might say, “Obviously, you must have something to hide. Otherwise you wouldn’t need to get a lawyer.” That is not true. As I said above, even an innocent person can get themselves in trouble by speaking to the police if they nervously phrase something the wrong way or say things in a way that could be misinterpreted. Do not allow yourself to be intimidated into giving up your right to remain silent or to consult an attorney.
There are a number of reasons why a person who is on probation might want to apply for early termination of probation. They may want to move out of state and not go through the difficult and frequently fruitless task of attempting to get another state to accept a transfer. They may have to travel out of state frequently for work or to attend to a chronically sick family member at the last minute and not always have the time to get permission first. If, as a condition of probation, they wear a GPS monitor, it may greatly limit the hours and places they can go within the state while frequently malfunctioning and giving off false alarms at their workplace. There is also the expense of the monthly probation fee and the taking time off of work to report in person to ones probation officer. Or it may just be that, after years of being on probation where they have done everything right to both comply with the terms of their probation and to resume a good law-abiding life of contribution to the community, they may have earned it.
Until fairly recently, it used to be rare for a probationer to get their period of probation terminated early. Judges would frequently deny the request stating that the fact that someone was already doing so well for the time they had been on probation was expected of them and, besides, why end probation early if it is working out so successfully. They might also say that the judge, who originally handed out the sentence and was, therefore, the one possibly most familiar with the case, knew how long they wanted the defendant to be on probation and would have, indeed, sentenced the person to a shorter period of probation if they had seen fit.
However, recently, in the intended interest of public safety, there has been a trend in the opposite direction in favor of presumably giving probationers an incentive to do well and rewarding them for establishing a track record of resuming a good law-abiding life. It is the same idea as when a prisoner gets paroled early.
At this present time in the courts of Massachusetts, early termination of probation is actually being encouraged as a routine action when merited. In fact, as a result of the formation of a number of working groups assembled by Ralph Gants, Chief Justice of the Massachusetts Supreme Judicial Court, a report was issued entitled Criminal Sentencing in the Superior Court: Best Practices for Individualized Evidence-Based Sentencing in March of 2016. It suggested, as a Best Practice, that:
“At the time of sentencing, a judge should inform the defendant/probationer that, after a period of compliance, the court may look favorably upon a request for early termination of probation or lifting of certain conditions as an incentive to successful performance.”
The rationale as expressed in the report is that:
“Studies have also shown that probationers are often more likely to complete their probation successfully when their positive performance is acknowledged or rewarded. Positive reinforcement and the use of incentives can motivate a probationer to succeed, as opposed to probation practices that recognize (and sanction) only failure . . . As is true in life generally, so too in the context of probation: the prospect of a reward for success is sometimes more powerful than the threat of punishment for failure.”
Requirements for Early Termination of Probation
- In the time they have been on probation, they should have successfully complied with all conditions, had no violations of probation, and be up to date on payments. In other words, they should have had a good run as a model probationer.
- In order to show how successfully they have complied with probation, they should probably not apply for early termination until they have completed, at the very least, half the period of probation. So, if one has, for example, been sentenced to five years of probation, they should, practically speaking, probably not apply for early termination until, at the very soonest, they have already served two and one half years of it.
Also, it would be ideal to get ones probation officer to agree to the request. However, it is generally the policy of most probation offices to either routinely oppose such a request as a standard policy or to stay neutral and leave it up to the judge. If they oppose it, hopefully, a judge will understand that the probation officer is doing so as a matter of their office policy and not because the probationer did not earn it. Otherwise, it is actually still somewhat helpful for a probation officer to tell the judge that he or she takes no position on it either way but that they will affirm that the probationer has been in full compliance with all the rules and conditions of their probation.
The motion for early termination of probation itself should have as much detail as possible explaining not only did the probationer comply successfully with all terms of probation but also the other positive things going on in their life to show they are currently living a life of stability and responsibility. These might include their employment, family ties and whatever contributions they have made to the community, church or non-profit organizations or private acts of kindnesses to those around them even if it means so much as shoveling the snow for free for an elderly neighbor.
If the probationer has engaged in counseling, include a letter from the therapist noting their patient’s active engagement in it with some level of assurance that the indications are they are likely to continue living a responsible law-abiding life. Letters from family and friends can also be included.
Also, key is to give a reason why it would be better and in the interest of justice for the person to now get off of probation.
If the judge denies the request for early termination of probation, all hope is not lost. Some judges have told the applicant that they would like to see them show just a bit of a longer track record on probation before they will feel comfortable about terminating it. Someone who gets turned down for early termination of, let’s say, a five-year probation after completing half of it, could ask the judge if they might reconsider their decision if they come back in another year after they have completed three and a half years.
This kind of positive reinforcement and incentive that goes along with the hope of the possibility of an early termination of probation if the probationer’s conduct has been exemplary can help the probationer to succeed in resuming a good law-abiding life and, therefore, is in the interest of public safety.
Under the law, one is able to withdraw a plea of guilty on a criminal case “if it appears that justice may not have been done.”
However, these requests to withdraw a guilty plea are not granted in a number of situations, so one should first identify the kinds of instances where they are successfully granted. When they are granted, the typical reason is that, at the time of the plea, some procedure during the actual plea was not properly followed such as one was not specifically informed of the rights they were giving up if they either pled guilty or admitted to an offense.
The reason this can be tough is that at the time of the plea, Massachusetts, similar to the courts in every other state, has one sign a piece of paper stating all the rights one is giving up such as the right to a trial and also gives a variety of warnings such as the immigration consequences of a guilty plea if not a citizen, The judge will then, on the record, verbally go over these waivers of rights and warnings with the defendant before a plea is accepted. The courts do this because they do not want someone to admit to or plead guilty to something, then come back, let’s say, a week or two later, saying they didn’t know what they were doing when they pleaded guilty because they were, perhaps, nervous and nothing was explained to them. The court would then pull out the signed sheet and the recorded audio showing that the person repeatedly confirmed they knew they were giving up their right to trial, knowingly, willingly and voluntarily.
One of the reasons all courts without exception insist on these waivers of rights by the defendant before accepting a plea is because only approximately 6 percent of all criminal charges in American courts result in a trial. The majority plead guilty or admit to the offense unless the case is dismissed earlier. Courts do not want to unnecessarily have to constantly reopen and proceed all over again on cases that were already disposed of and closed.
So, it is not good enough for someone with a previous conviction to come forward and ask the judge to “un-do” the guilty plea because they’ve stayed out of trouble for years following their conviction or it is hurting their employment or school opportunities or just that they weren’t using good judgment at the time of the plea and, on second thought, would have preferred a trial. Some of those kinds of arguments might, on the other hand, be good reasons for requesting that ones record be sealed. But these reasons are not generally accepted as a sufficient reason to make the guilty conviction essentially disappear so that it never happened through a withdrawn plea.
Still, one shouldn’t be completely discouraged since a number of these requests to withdraw a plea – made through what is referred to as a Motion for a New Trial – are successfully granted. Occasionally, it is discovered that the official court paperwork is missing or left blank or filled out erroneously and this might be a reason to withdraw the plea. Also, there are times when the judge or the defense lawyer, indeed, did not adequately explain to the defendant the rights he or she were giving up when they did the plea.
Recently, a great many motions to withdraw a guilty plea have been granted in cases where a defendant who is not a citizen was not adequately explained his or her immigration rights and now claim to be surprised that the plea they made in the past is now the cause of them being deported or facing other immigration consequences.
The reason many of these cases have been particularly successful is due to a decision that came down several years ago called Padilla v. Kentucky. That case said that it is no longer sufficient if the non-citizen doing the plea was only warned in a general way that a plea might have immigration consequences such as deportation, preventing one from ever becoming a citizen or would block one’s readmission into the United States if they travel outside it. The case said that attorneys and the court must advise a person that their guilty plea clearly and unambiguously “will” result in their deportation if the particular law they broke makes deportation or other very specific punishments inflexibly definite. This is a new law that can be applied retroactively. That means that, even if you had an excellent attorney who did everything right for your plea years ago under the law as it existed before the law changed under the Padilla case, you will still have an opportunity to get your guilty plea reversed and thrown out.
There are a number of other reasons why a guilty plea can be withdrawn and an experienced attorney can advise you on your chances of success. Contact me today for a free consultation.
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